Jordan Cusner responds to “The Constitutional Case for Jewish Charter Schools”

To the Editors:

Tal Fortgang’s essay in favor of “The Constitutional Case for Jewish Charter Schools” was as enlightening as it was impassioned. As a self-identifying constitutional originalist in the spirit of Justice Antonin Scalia (if I may take that liberty), I genuinely appreciated the author’s overview of the historical context that informed the drafting of the First Amendment, which, in turn, laid the framework for much of Mr. Fortgang’s critique of the subsequent Supreme Court decisions on that point.

That said, and while acknowledging his erudition on this matter, I took issue with Mr. Fortgang’s ultimate conclusion. More than that, I believe his essay ignored two very real and impactful dimensions of this debate, ones which certainly need to be addressed by those arguing for state or federal funding to be reallocated to private schools, religious or otherwise.

The first is civic, namely, the reality that a healthy public-school system is itself the cornerstone of thriving, functional — and, importantly, desirable — American communities, with or without sizable Jewish populations. While it’s true that some tax dollars from those in the faith-based, private-school-sending constituency are spent on “other people’s kids,” those taxpayers are assuredly the beneficiaries of these well-funded institutions, at least indirectly. Are they receiving the full complement of those benefits? Of course not; absent sending their children to those schools, how could they? But while I won’t make an altruistic Hillelian argument — “If I am only for myself, what am I?” — we should be concerned about the possible impact of reallocating those funds to schools that would support only a small fraction of the children that make up the local population. Put another way, reducing funding for a very real public good could have a far-reaching, long-term negative impact on the health of our communities at large.

The second concern is communal, this time with a focus on the Jewish community in specific. While Mr. Fortgang’s displeasure with the degradation of social norms at the hands of postmodernism is entirely valid, the antidote for that is not nor can it be a return to a society that overtly favors religious principles, and certainly not in a government-sanctioned way. Mr. Fortgang points to comments made by John Adams as not only proof that such a separation was never the intention, but that in Adams’s view the “proliferation of religion and religious ideas” was an essential tenet of the republic he helped to formalize. While such a solution is enticing, the Bill of Rights was established with the express purpose of enshrining these safeguards such that they would not be dependent on whether or not those next in power shared Jefferson’s or Adams’s views, or, more crucially, their restraint.

And yet, despite the time-honored traditions that inform how courts interpret these foundational texts, the Framers’ vision for protecting religious freedom is being challenged daily, lately from those who seek to advance a Christian nationalist agenda throughout our great nation. This isn’t sensationalism; there are countless examples in 2024 of those on the religious Right assuming power, often at the local or state level, and attempting to infuse various public institutions with their chosen brand of piety. Thankfully there are longstanding, well-accepted legal grounds upon which to challenge these naked attempts to “restore” Christianity as the state religion. But, left unchecked, Jews know how this story invariably ends (see: Jewish population trends in locales with an official state religion since ever).

For millennia, and certainly in the many decades of the Jewish American Golden Age, the Jewish people has committed itself to holding education and knowledge among its most sacred missions. To its credit, the global Jewish community has managed to do this throughout history, despite discrimination, persecution and much, much worse. To withdraw from this essential function of society, even with the best of intentions, runs in stark contradiction to those ideals, and sells short the Jewish community’s commitment and ability to deliver high levels of academic instruction to its pupils no matter where their homeroom may be found.

I share Mr. Fortgang’s disappointment with the state of our world-community, and the displacement of religious morality as a driving force for decorum and the priorities we establish for ourselves and our children. But the solution to this problem — one that has surely been hastened by social media — is not to turn inward or isolate from the broader society; not in terms of our participation, nor in our influence. Rather we — and by that I mean members of all faith-based communities — need to consider Isaiah’s directive to provide “a light unto the nations,” and find more, not fewer, ways to interact with those around us.